in the supreme court of appeals of west ......on january 9, 2015, the circuit court of marshall...

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

No 16719098 --~-O-[S--=~--~I STATE OF WEST VIRGINIA EX REL AIRSQUID n VENTURES INC (DBA AMPHIBIOUS MEDICS) and FEB 6 2015 U TRAVIS PITTMAN

Defendants Below Petitioners RORY L PERfW Il CLERK SUPREME COURT OF APPEALS

OF WEST VIRGINIA

v

HONORABLEDA VID W HUMMEL JR Judge of themiddot Circuit Court of Marshall County West Virginia

Respondent

PETITION FOR WlUT OF PROHIBITION

Action Pending in the Circuit ~ourt of Marshall County Civil Action No 14-C-66H

David L Shuman Esquiremiddot (WVSB 3389) David L Shuman Jr Esquire (WVSB 12104) Roberta F Green Esquire (WVSB 6~98) SHUMAN McCUSKEY amp SLICER PLLC 1411 Virginia Street East Suite 200 (25301) P O Box 3953 Charleston WV 2 5339-3953 Phone 304-345-1400 Facsimile 304-343-1286 dshumanshunianlawcom dshllinanjrshumanlawcom rgreenshumanlawcom

Robert C Morgan Esquire MORGAN CARLO DOWNS amp EVERTON PA

Executive Plazamiddot III Suite 400 11350 McCormick Road IIunt Valley MD 21031middot Phone 1-443-589-3333 rcmorganmorgancarlocom Admitted Pro Hac Vice

Co-counselor Airsquid Ventures Inc dba Amphibious Medics

Karen Kahle STEPTOE amp JOHNSON PLLC 1233 Main Street Suite 3000 PO Box 751 Wheeling WV 26003-0751 (304) 233-0000 KarenKahleSteptoe-lohnsoncom

Charles F Johns (5629) Denielle Stritch (11847) STEPTOE amp JOHNSON PLLC 400 White Oaks Boulevard Bridgeport WV 26330 (304) 933-8000middot CharlesJohnsSteptoe-Johnsoncom Counselfor Travis Pittman

ii

TABLE OF CONTENTS

SECTION PAGE

TABLE OF CONTENTS

TABLE OF AUTHORITIESbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull v

QuESTIONS PRESENTEDbullbullbullbullbullbullbull ~bullbullbullbullbullbull ~bullbullbullbullbullbullbullbullbullbull bullbullbullbullbullbullbullbull ~ bull bull bull bullbull 1

STATEMENT OF TIlE CASE bullbullbullbullbullbullbullbullbullbullbullbullbull bullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull 2

SUMMARY OF ARGUMENT bullbullbullbullbullbullbullbullbull ~ bullbull ~ bullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull 4

STATEMENT REGARDING ORALARGUMENT AND DECISION bullbullbullbullbull 5

ARGUMENT bullbullbullbullbullbull bull ~ bullbullbullbullbull ~ bullbull bullbullbullbullbullbullbull ebullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull6

A Introduction and Factual Background bullbullbull ~ bull bull bull 6

i

B Standard of Review bullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull bullbullbullbullbullbull7

C Questions Presented bullbullbullbullbullbullbullbullbullbullbullbull bullbullbullbullbullbullbullbull bullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull ~bullbull 9

1 Pursuant to West Virginia law is venue determined by the residence of any ofthe defendants or where the cause of action arose even in the instance of a corporate defendant and an individual plaintiff bull bull bull bull bull bull bull bull bull bull bull bullbull bullbullbullbull9

2 Is a corporate defendant said to reside pursuant to West Virginias venue statute W Va Code sect56-1-1(a)(2) wherein its principal office isor if its principal office be not in this state wherein it does business bullbullbullbullbullbullbullbullbullbullbullbullbull bull bullbullbull 10

3 Ifa corporations office is not in West Virginia is the phrase wherein it does business interpreted by the sufficiency of the corporations minimum contacts in such county that is whether it is doing a substantial portion of its business therein 13

4 If a civil action is filed in a county in which no venue determinative connections exist is venue appropriate there bull ~ bullbullbullbullbullbullbullbull ~ bull 18

5 If pursuant to West Virginia Rules of Civil Procedure Rule 12(b)(3) West Virginia Code Section 56-1-I(a) and this Courtsopjnions construing same a civil action is improperly filed in the wrong county and therefore is pending before the wrong

iii

Circuit Court should that civil action be dismissed or in the alternative transferred to the appropriate venue within West Virginia 19

6 Should this Honorable Court intervene here where the lower tribunal has misstated and therefore misconstrued the terms of the forum selection clause included in the Assumption of Risk Waiver of Liability and Indemnity Agreement (Agreement) entered between the parties bullbull 21

7 Should this Honorable Court intervene here where the lower tribunal has misconstrued West Virginia law where this Court othenvise would not have the 9Pp0rtunity to clarify this point of law-before- unnecessary discovery and where to proceed will lead to delay and unnecessary cost for which an appeal cannot compens~~e bullbull ~ bullbullbullbullbull bullbull 23

CONCLUSIO~ bullbullbullbullbullbull ~ bullbullbullbullbullbullbullbull bull 24

VERIFICATION shy

_CERTIFICAT~ OF SERVICE

iv

TABLE OF AUTHORITIES

Case Law

Crawford v Carson 138 W Va 852860 78 SE2d 268 273 (1953) bull13 14

Hansbarger v Cook 177 W Va 152 157351 SE2d 65 71 (1986) bullbull0bullbullbullbullbullbullbull 19

State ex reL Cooper v Caperton 00 196 w oVa 208 214 470 SE2d 162 168 (1996) bullbullbullbullbullbullbullbullbullbullbullbullbull421

State ex rei Farberv Mazzone 0

0213 W Va 661 664 584 SE2d 517 520 (2003) bullbullbullbullbullbullbullbull 0bullbullbullbullbull ~ bullbullbullbullbullbullbullbullbullbullbullbullbull 8

State ex rei Galloway v McGraw 227 W Va 435 ~11 SE2d257 (211) bullbullbullbull obullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull18 1920

State ex rei Hoover v Berger 199 W Va 12483 SE2d 120 (1996) bullbullbullbullbullbullbullbull ~ bull ~ bullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull7 823

State ex rei Huffman v Stephens 206 WVa 50 i -526 BE2d 23 (1999) bullbullbullbullbullbullbullbullbullbullbullbullbullbull ~ bullbullbullbullbullbullbull 11 20

State ex rei Riffle v Ranson 195W Va 121464 SE2d 763 (1995) bullbullbullbullbullbull ~ bullbullbull ~ bullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull7 9 23

o 0 0

o State ex rei Stewart v Alsop 207 W Va 430 533 SE2d 362 (2000) bullbullbullbullbullbullbullbullbullbullbullbullbullbull 20

State ex rei Thornhill v King 233 W Va 564567 759 SE2d 795 7980(2014)bullbullbullbullbullbullbullbullbullbullbullbullbullbull 791617182023

State ex rei United Hospital Center Inc v Bedell 199 WVa 316 484 SE2d 199 (1997) bullbull 8

Westmoreland Coal Co v Kaufman 184 W Va 1950 197399 SR2d 906908 (1990) bullbull 0 bullbullbullbullbullbullbull ~ bullbullbull 12

Wetzel County Savings amp Loan v Stern Bros Inc 0156 W Va 693~195 SE2d 732 (1973) bullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull 1719

v

Statutes

West Virginia Code Section 53-1-1 8

West Virginia Code Section 56-I-I bull 4 20 22

West Virginia Code Section 56-1-I(a) 9 11 19

West Virginia C~de Section 56-1-I(a)(2) 101112 15

West Virginia Code Section 56-1-1 (b) bull 20

Procedural Sources

West Virginia Rules of Appellate Procedure Rule 19(a)(1 bullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull5

West Virginia Rules of Civil Procedure Rule 12(b )(3) bullbullbullbullbullbullbull ~ bullbullbullbullbullbullbull bullbullbullbullbullbullbullbull 1 19

vi

QUESTIONS PRESENTED

This petition presents the following questions for review

1 Pursuant to West Virginia law is venue determined by the residence of any of the defendants or where the cause of action arose even in the instance of a corporate defendant and an in4ividual plaintiff

2 Is a corporate defendant said to reside pursuant to West Virginias venue statute W Va Code sect56-1-I(a)(2) wherein its principal office is or if its

principal office be not in this state wherein it does business

3 If a corporations office is not in middotWest Virginia is the phrase wherein it does business interpreted by the sufficiency of the corporations minimum contacts in such county that is whether it is doing a substantial portion of its bUsiness therein

4 If a civil action is filed in a county in which no venue determinative connections exist is venue appropriate there

5 If pursuant to West Virginia Rules ofCivil Procedure Rule 1 f(b)(3) West Virginia Code Section 56-I-l(a) and this Courts opinions construing same a

civil action is improperly filed in the wrong county and therefore is penltiing before the wrong Circuit Court must that civil action be dismissed or in the altemati~e transferred to the appropriate venue within West Virginia

6 Should this Honorable Court intervene here where the lower tribunal has misstated and therefore misconstrued the terms of the foruin selection clause included in the Assumption of Risk~ Waiver of Liability and Indemnity Agreement (Agreemen~) entered between the parties

7 Should this Honorable Court intervene here where the lower tribunal has misconstrued West Virginia law where this Court otherwise would not have the opportunity to clarify this point of law before unnecessary discovery and where to proceed will lead to delay and unnecessary cost for which an appeal cannot compens~te

STATEMENT OF THE CASE

The underlying wrongful death action arises from the accidental drowning of A vishek

Sengupta in April 2013 as he participated in the Tough Mudder Mid-Atlantic event (Event) held

in Gerradstown Berkeley County WV [App000003] Mr Senguptas Estate the plaintiff

below alleges that as a result of defendants negligence Mr Sengupta drowned during the

Event [App 000028-29] Prior to participating Avishek SengUpta agreed to and executed

defendant Tough Mudder LLCs Assumption of Risk Waiver of Liability and Indemnity

Agreement (Agreement) [App 000075] The Agreement is a three-page contract that contains a

section entitled Other Agreements whichincludes a sub-section titled Venue and Jurisdiction

I understand that if legal action is brought the appropriate state and federal trial court in which the TM event is held haS the- sole and exclusive jurisdiction and that only thesubstantive laws of the State in which the TM event is held shall apply

[App 000075] In addition to initialing the five different sections of the Agreement Avishek

Sengupta signed and dated the Agreement at the bottom of both page 2 aIid page 3 [App

000076-77] The Estate filed suit in the Circuit Court of Marshall CoUnty West Virginia on

Apri118~ 2014 In response to the Estates suit in Marshall County Airsquid Ventures Inc dba

Amphibious Medics and Travis Pittman (hereinafter referred to collectively for purposes of this

Petition as Airsquid) (among other defendants) filed a motion to dismiss based upon the venue

statute and the contract provisions and this Courts analysis of same through its reported

opinions [App 000139] Defendant Airsquid argued that both the venue statute and the case law

demonstrate that Hthe appropriate state court is not the Circuit Court of Marshall County

because none of the defendants reside there and b~cause the cause ofa~tion did not arise there

[App 0000142) Moreover none of the defendants conducted a substantial portion of their

business in MarshallCounty

2

Defendants venue motions were brought on for hearing before the Circuit Court of

Marshall County on August 22 2014 In its September 15 correspondence to all counsel relative

to venue the Court advised that it adopt[ ed] the reasoning and analysis set forth by the

Plaintiff and further stated that its Venue ruling and analysis begins and necessarily ends

with the Venue and Jurisdiction clause of the putative agreement [App 000979] The Circuit

Court e~ded ifs letter by instructing Plaintiff to prepare a draft order reflective of the Courts

foregoing determinations [App 000979]

Plaintiff prepared an order Order Denying Defendants~ Motions to Dismiss Based on

Venue and FOIum Non Conveniens (hereinafter Venue Order) which was submitted pursuant

to Trial Court Rule 2401 AirsqUid submitted objections se~g out West Virginia lawon venue

but also noting that plaintiffs proposed order repeatedly misstated the terms of the Venue and

Jurisdictio~ clause in the Agreement Airsquid urged the Circuit Court to consider the

importance of the orders addressingfullyrairly and most importantly accurately the Venue

and Jurisdiction clause especially because the Circuit CoUrt stated expressly that its ruling

begins and necessarily ends with the Venue and Jurisdiction clause of the putative

agreement [App 000981]

Specifically plaintiff repeatedly substituted the indefinite article any -~ any

appropriate state or federal court - for the d~finite article in the actual language the

appropriate state or federal court (emphasis add~d) [App000988-89 0000991 001012-13

001015] Beyond the inaccuracy itself Airsquid further has maintained that the use of the definite

article the is an express enlistment of the venue statute -- where the cauSe of action arose ~ all

of which is lost in the Venue Orders error W Va Code 56-1-1 [App 000998] Nonetheless

over the objections of defendants the Circuit Court adopted plaintiffs order virtually verbatim

3

including the substitution of any appropriate state or federal court for the appropriate state or

federal court (emphases added)

On January 9 2015 the Circuit Court of Marshall County denied defendants motions to

dismiss based on venue by entering virtually verbatim the Venue Order submitted by the Estate I

[App 001006]

Oefendant Airsquid Ventures Inc dba Amphibious Medics and Travis Pittman petition

this Honorable Court fora writ prohibiting the enforcement of the January 92015 Order

entered by the Circuit Court of Marshall County because the Venue Order is clearly erroneous as

a matter of law~ Petitioners further move this Court to grant their motion to dismiss based on lack

ofvenue in Marshalt County These petitioners requests the relief this Court deems just

SU~YOFARGUMENT

Avishek Sengupta drowned while participating in a Tough Mudder sports event in

Berkeley County West Virginia [App 000003] His Estate filed the subject wrongful death

action in Marshall COUIity West Virginia against five defendants none of whom resides in

Marshall middotCounty and none of whom conducts a substantial portion of its business in Marshall

County [App 000004-5] Plaintiff has failed to identify any venue determinative event in or

feature of Marshall County West Virginia App 000005-6 000139ff] While four of the five

defendants are foreign one of the defendants Peacemaker National Training Center resides in

1 Order Denying Defendants Motions to Dismiss Based on Venue and Forum non Conveniens (Humniel J) is verbatim to the order submitted by the Estate absent one sentence that the Court literally physically redacted ORDERED Defendants agreement as to the form ofthls Order shall notaffect the Defendants right to appeal the substance ofthis Order Seemiddot State ex rei Cooper v Caperton 196 W Va 208214470 SE2d 162 168 (1996) finding that verbatim adoption ofonemiddotpartys proposed order is not the preferred practice but is not absent more reversible error Additionally the draft order was submitted pursuant to Trial Court Rule 2401 and all defendants submitted objections to the proposed order (none of Which were adopted or at

least successfully considered in the Venue context)

4

Berkeley County West Virginia and conducts a substantial portion of its business in Berkeley

County Additionally the cause of action (the drowning) arose in Berkeley County [App

000005] Each of the defendants has challenged venue Specifically defendant Airsquid filed a

motion to dismiss this action or in the alternative to transfer the action to Berkeley County

[App000139]

Indenying the defendants moti~ns the Circuit Court of Marshall County a40pted the

plaintiffs order (and thereby its reasoning) virtually verbatim thereby misconstruing West

Virginia law on venue and misstating the Venue and Jurisdiction clause in the agreement

between the parties [App 001015] D~fendant Airsquid reasserts its position that the venue

determination made by the CircuitCourt of Marshall County is clearly erroneous as a matter of

law Whereas direct appeal could be available defendant woUld spend unnecessary time and

expense in pursuing a full litigation in the wrong venue prior to appealing the venue

determination Airsquidseeks relief from the Venue Order below and asks this Court to

intervene beca~e the lower co~exceeded its legitimate powers by proceeding where ve~ue

does not lie

STATEMENT REGARDING ORAL ARGUMENT AND DECISION

Pursuant to West Virginia Rules ofAppellate Procedure Revised Rule 19(a)(I) brief oral

argument is necessary in this instance because this case presents questions that allege error in the

application of settled law

ARGUMENT

A Introduction and Factual Backg~ound

The Estate of Avishek Sengupta (hereinafter plaintiff) filed suit in the Circuit Court of

Marshall County West Virginia on April 18 2014 alleging wrongful death arising out of the

5

death of Mr Sengupta (hereinafter Decedent) while participating in the Tough Mudder Mid-

Atlantic event held on April 20 2013 (hereinafter the Event) [App 000003] According to the

Complaint Mr Sengupta and his teammates decided to sign up for the Event several months

prior to April 202013 [App 000012] The Event took place in Gerradstown Berkeley County

West Virginia on property owned by Peacemaker National Training Center (Peacemaker) a

West Virginia limited liability corporation with itsmiddot sole piac~ of business in Berkeley County

West Virginia rApp 000005]

The Estate haS brought suitmiddot against Peacemaker Tough middotMud~er LLC (Delaware)

Airsquid (California) General Mills Inc and middotGeneral Millsmiddot Sales~ Inc (Delaware corporations

with their prinCipal place of business in MiIinesota)middotand Travis Pittman an individUal (resident

of Maryland) [App 000004-5] Plaintiff alleges that venue and jurisdiction middotare proper in the

Circuit Court of Marshall County- West Virginia because all defendants transacted business

contracted to supply services ormiddotthings caused tortious injury by act ormiddot omission used or

possessed real property andor resided in middotWest Virginia [App 000006] Additionally Plaintiff

alleges venue is proper in Marshall County West Virginia because one or more of the

Defendants deliberately and regularly engages in comnierce in Marshall County andor resides in

Marshall CountY [App000007]

Plaintiff does not allege that any of the defendants reside or maintain a principal place of

business within Marshall County Further as the Complaint alleges this cause of action arose

only out of events occurring within Berkeley County West Virginia [App 000005] While

plaintiff alleges that the defendants caused tortious injury by act or omission within West

Virginia per plaintiffs Complaint all such alleged acts or omissions occurred solely in Berkeley

County no act -or omission occurred in Marshall County Notwithstanding plaintiffs general

6

allegations that some of the defendants advertise or conduct minimal business within Marshall

County none of the defendants conduct a substantial portion of their business in Marshall

County - indeed plaintiff has not even alleged that they do Nothing in Marshall County is

venue determinative

Defendants filed motions to dismiss based on improper venue which motions were

denied [App 000033 000139 001006] Defendant Airsquid petitions this Court for a finding

that the Venue Order is a clear misstatement of West Virginia law and that venue does not lie in

Marshall County

B Standard of Reviewmiddot

This Court has held that it is well-settled law that the issue of venue may properly be

addressed through a writ of prohibitionSee State ex reI Thornhill v King 233 WVa 564 middot~67

759 SE2d 795 798 (2014) The Thornhill Court further cited Strzte ex reo RifJle V Ranson 195

W Va 121 464 SE2d 763 (1995) foJ the Courts preference for resolving ~s issue [venue1

in an original aCtion given the inadequacy of the middotrelief permitted by appeal Id at 124 464

SE2d at 766 Additionally the Thornhill Court relied extensively upon State ex rei Hoover V

Berger 199 W Va 12483 SE2d12 (1996) in determining whether to intervene in instances

where the lower court is alleged to have exceeded its legitimate powers as follows

(1) whether the party seeking the writ has no other adequate means such as direct appeal to obtain the desired relief (2) whether the petitioner will be damaged or prejudiced in a way that is notcorrectable on appeal (3) whether the lower tribunals order is clearly erroneous ~ a matter of law (4) whether the lower tribunals order is an oft repeated error or manifests persistent disregard for either procedural or substantive law and (5) whether the lower tribunals order ~aises new and important problems or issues of law of first impression

This Court has found these factors to be general guidelines further fmding that not all of the

factors need to be met for this Court to act Although all five factors need not be satisfied it is

7

clear that the third factor the existence of clear error as a matter of law should be given

substantial weight Syl pt 4 State ex reI Hoover 199 W Va 12 483 SE2d 12 This Court has

explained further the standard of review applicable to a writ of prohibition as follows

A writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers W Va Code 53-1-1 Syl pt 2 State ex reI Peacher v Sencindiver 160 WVa middot314 233 SE2d 425 (1977)

Syl p~ 2 State ex reI Kees v Sanders 192 WVa 602 453 SE2~ 436 (1994)

State ex rel~ Farber v Mazzone 213 W Va 661 664 584 SE2d 517 520 (2003) quoting Syl

pt 1 State ex reI United-Hospital Center Inc v Bedell 199 WVa 316484 SE2dmiddot199 (1997)

As demo~trated herein the lower tribunal has misconstrued well-settledWestVirgitlla

law -- that venue -is appropriate where the cause of action arose or where any of the defendants

resides Whereas West Virginia law sets corporate residence by sufficient minimum contacts so

as to comport with substantial justice and fairplay West Virginia law al~o niandatesthat for ~

venu~ purposes~middotmiddotthe corporate contacts With the venue must consti~te a substantial portion of the

corporate defendants business in order to be venu~ detenninative The Venue Order entered by

the Circuit Court of Marshall County misstates West Virginia law on venue [App 001011] The

Venue Order fiu1her misstates the Venue and Jurisdiction clause in the contract between the

parties [App 00101213] The Venue Order places venue in a county that has no ties to the

events at issue and no recognized venue-determinative ties to any of the defendants or the claims

[App 000139] Defendant Airsquid moved to dismiss the claim based oil venue being improper

in Marshall County [App 000139] Defendant Airsquid alternatively moved to transfer the claim

to Berkeley County where the one domestic defendant resides (Peacemaker) and where the

cause of action arose When the Circuit Court of Marshall County denied the motions Airsquid

advanced to this petition middotfor writ so that all parties could avoid the delay and unnecessary

8

expense of litigating the Estates claim both of which (delay and expense) cannot be recouped

upon even a subsequently successful appeal

c Questions Presented

1 Pursuant to West Virginia law is venue determined by the residence of any of the defendants or where the cause of action arose even in the instance of a corporate defendant and an individual plaintiff

Ven~e in West Virginia is defined an~ set by where the cause of action arose or where

any defendant West Virginias venue statute at its most basic provides that [a]ny civil action or

other proceeding may hereafter be brought in the circuit colJ of any county ~Iw]herein any of

the defendants ~ay reside or the cause of action aros~ W Va Code sect 5~~1-l(a) While the

venue statute and this Court have considered a variety of factors that can determine venue a

plaintiffs choice of venue absent other 4etermining factor is never compelling State ex rei

Thornhill 233 W Va at 57C 759 SE2d at 802 removing the situs of plaintiffs hann from the venue

determination State ex rei Riffle 195 W Va at 126 464 SE2d at 768 finding West Virginia

Legislature paramount authority (statute) for deciding venue issues

In this instance the Estate has filed suit against four corporate defendants and one

individual defendant resides [App 000004-5] By the terms of plaintiffs Complaint and the

discovery done herein the individual Travis Pittman is a resident of Maryland [App 000095J

Three of the corporate defendants reside outside West Virginia New York California and

Delaware [App 000004-5] The final corporate defendant Peacemaker National Training Center

(peacemaker) is a West Virginia limited liability corporation with its only place of business in

Berkeley County West Virginia [App 000004-5]

2 The defendants herein are as follows (1) Tough Mudder LLC a Delaware limited liability company with its principal place of business at 15 Metrotech Center 7th Floor Brooklyn NY 11201 (hereinafter Defendant Tough Mudder) (2) Airsquid Ventures Inc dba Amphibious

9

The cause of action arose on Peacemakers property located in Berkeley County where

the Event was held in April 2013 Avishek Sengupta drowned during the event held on the

Peacemaker property in Berkeley County WV All five defendants have challenged venue in

Marshall County All five defendants have sought dismissal or transfer as a result Venue is

improper in Marshall County because none of the defendants reside there and the cause of action

did not arise there For these reasons and those set out further herein the Venue Order cannot

starid

2 Is a corporate defendant said to reside pursuant to West Virginias venue statute W Va Code sect56-1-1(a)(2) whereinits principai office middotis or if its principal office be not in this state bull wherein it does business

In its Complaint the Estate alleges that venue and jurisdiction are 1roper in the Circuit

Court ofMarshall County West Virginia because one or more of the Defendants deliberately

and reguiarly ellgages in cOnUnerce in Marshall ~ounty andor resides in Marshall County

[App 000007] bull ~Ie the Estate has alleged that the defendants engage in buSiness in Marshallmiddot

County generally (su~h as that General Mills products can be purchased iri Marshall County) the

Estate hasmiddot not effectively alleged that any defendant conducts a substantial portion of its

business in Marshall County as distinguished from any other location in West Virginia the

United States or the world

Medics a California Corporation with its principal place of business at 2201 Lakewood Blvd SUite D Long Beach CA 90815 (hereinafter Airsquid) (3) Travis Pittman an individual with a primary residence of 6662 Seagull Court Frederick MD 21703 (hereinafter Mr Pittman) (4) Peacemaker National Training Center a West Virginia limited liabi1~ty company with its principal place of business of 1624 Brannon Ford Road Gerradstown WV 25420 (hereinafter Defendant Peacemaker) and (5) General Mills Inc and General Mills Sales Inc both Delaware corporations with their principal place of business at 1 General Mills Boulevard Minneapolis MN 55426 (hereinafter collectively Defendant General Mills)

10

Notably the Estate has not alleged that any of the defendants maintain a principal place

of business in Marshall County All of the events at issue occurred in Berkeley County West

Virginia [App 000035] The only defendant with an actual presence in West Virginia

Defendant Peacemaker maintains its principal place of business in Berkeley County West

Virginia [App 000005] Therefore venue could be appropriate in Berkeley County due to the

alleged eventsocmiddotcurring inmiddot Berkeley Co~ty due to Defe~dant Peacemakers principalmiddotplace of

business existing in Berkeley County and due to the fact that none of the non-resident defendants

conduct a substantial p~rtion of its business in any county in West Virginia

In response to the Estates suit in IAarshall County Airsquid (among otherdefendants)

fil~dmiddota motiontQ dismiss based upon the venue statute and middotthis Courts analysisof same through

its reported opinions [Apigt 000139 000142] Airsquid argued pursuant to West Virginia law

[a]ny ciVil actionot other proceedmg~ mayhereafter be brought in the circuit courtmiddot of any

county [w ]herein 8Y of the defen4ants may reside or the cause of action Mose wVa Code

sect 56-1-1(a)middot FUrther venue is appropriate against a corporate defendant wherein its princip~l

office is or if its principal office be not in this state wherein it does businessmiddot W Va Code

sect56-1-1(a)(2) 1n its mmiddototion to dismiss for improper venue Airsquid relied upon this Courtsmiddot

opinions to provide meaning to the phrase wherein it does business noting that this Court has

held that [w]hether a corporation is subject to venue in a given county under the phrase

whereinit does business depends upon the sufficiency of the corporations minimum contacts

in such countY that demonstrate it is doing business SyI Pt 1 State ex reI H~an v

Stephens 206 WVa 501 526 SE2d 23 (1999) [App 000142] This Court has found the

contacts sufficient for venue where the imposition of suit does not offend traditional notions of

11

fair play and substantial justice Westmoreland Coal Co v Kaufman 184 W Va 195 197399

SE2d 906 908 (1990) [App 000143]

Moreover Defendant General Mills did not have sufficient connection with Marshall

County to satisfy the requirements outlined in W Va Code sect56-1-1 (a)(2) [App 000888]

Defendant General Mills upon information and belief is a nationwide manufacturer and

distributer of Wheaties brand cereal alOIlg with many other produ~ts P~aintiff alleges that

Defendant General Mills derives substantial revenue from residents of Marshall County who

purchase its goods and numerous locations However~ the ComplaiDt alleges a wrongful death

cause of acti~n Idue to the alleged negligent acts that occurred during an endurance or obstacle

race occurring in Berkeley County Plaintiff does not allege that the Decedent was enticed to

participate inthe Event due to the pUrchase of defendant General Mills product in Marshall

County Further Plaintiff does not allege that products sold in Marshall County caused andlor

contributed to Decedents death Defendant General Mills while conducting unrelated business

in Marshall CoUnty did not engage in a substantial portion ofbusiness within Marshall County

and importantly Defendant General Mills presence within Marshall County was completely

devoid of any connection to the events that occurred within Berkeley County [App 000155]

Plaintiff worked to establish venue in Marshall County based upon wholly unrelated advertising

andlor sales from efforts completely unrelated to the events and allegations at issue in this civil

action wherein none of the defendants conduct a substantial portion of their business where

none ofth~ defendants reside and where none of the events arose

Venue is improper in Marshall County and the Venue Orderis clearly erroneous under

West Virginia law and cannot stand

12

3 If a corporations office is not in West Virginia is the phrase wherein it does business interpreted by the sufficiency of the corporations minimum contacts in such county that is whether it is doing a substantial portion of its business therein

Although a corporation may transact some business in a county it is not found therein

if its officers or agents are absent from such county and the corporation is not conducting a

substantial portion of its business therein with reasonable continuity Crawford v Carson

138 W Va 8S2 860 78 SE2d 268273 (1953) (emphaiis added)

Airsquid movedthe Court below to dismiss the instant action for improper venue because

none of the defendants conduct a substantial portion of its business in Marshall County

Alternatively Airsquid moved the Court below to transfer ~e action to Berkeley County WV

where defendant Peacemaker maintains its principal place of busine~s where it conducts a

substantifl portion of its business With reasonable continuity and where the cause of action

arose While evidence was presented that some of the defendants are presentin Marshall Colinty

(for examplt~ that General Mills goods may be purchased there) plaintiff has been unable to

prove that any of the defendants has made a concentrated effort to have more of~middot presence in

ty1arshall County than anyplace else in this state or in this country or in~ernationally Of note

plaintiff has not identified any tie to Marshall County thatmiddot would qualify as a venue

determinative factor under West Virginia law

Rather than r~cognize the residence of the one domestic corporate defendant Peaceinaker

or concede venue in the county where the cause of action arose the Estate has focused most

intently On General Mills presence in Marshall County West VirgiJia [App 000148]

SpecIfically the Estate focused on defendant General Mills providing evidence of its presence

13

3

in Marshall County3 [App 000155] The Estate worked to prove that General Mills deliberately

and regularly engages in commerce in Marshall County andor resides in Marshall County

However this Court has held that absent conducting a substantial portion of business here

deliberate and regular contact is insufficient Crawford138 W Va at 860 78 SE2d at 273

(emphasis added) While the Estate expended considerable effort in identifYing General Mills

activity in Marshall County~ it did nothing to demonstrate that any of the occurrences inWest

Virginia constitUted a substantial portion of General Mills business

For venue purposes West Virginia analyzes the phrase wherein it does business in

terms of minimum contacts ~eaching a level sufficient for in personam jurisdiction over the

foreign defendant Specifically in determining the sufficiency of a corporations minimum

contacts in a coUnty to demonstrate that it is doing business this Court has foun~ in terms of

venue notions of fair play arid substantial justice require a slJbstantial connection between a

The Estate provided by exaniple the followIng evidence of General Mills presence in Marshall County

General Mills Inc Annual Report (that does not reference West Virginia nor Marshall County at any point)

General Mills 2013 Annual Report stating that at least one of our brands is found in 97 percent of US homes thatover the last five years media spending has increased by more than 50 percent to $89S million in 2013 that )ntemational mar~et growth has been exponen~ial with the Latir~ American market growing 139 percent (5 7)

Affidavit of William C Beatty retired police officer and investigator and retained private investigator who was sent by plaintiff to the walmart and Kroger in Marshall County where he found General Mills products

Affidavit of Thomas Burgoyne retained private investigator whom plaintiff sent to Walmart Dollar General and Family Dollar where he found General Mills products along with advertising circulars included in the local paper for Kroger and Walmart that in~luded ads for General Mills products

Affidavit of Cathy L Gellner who watched television for the plaintiff and saw General Mills advertisements on national networks (NBC CBS TLC Nickelodeon) that were aired in Marshall County West Virginia

Affidavit of Corey Murphy currently superintendent of Marshall County Schools recounting the riineteen General Mills products that to his knowledge are served in the Marshall County schools

14

defendant and the forum to establish mImmum contacts that result from an action of the

defendant purposefully directed toward the forum Jd In the current action none of the

defendants purposefully directed actions toward Marshall County generally nor in connection

with the events alleged in plaintiff s Complaint

Further several defendants including defendant Airsquid Tough Mudder and General

Mills are foreign corpo~ations organized under the laws of different states with principal places

of business outside the state of West Virginia Plaintiff alleges that these defendants conducted

business in Marshall County that wasmiddot of such a nature to satisfy the requirements of W Va Code

sect56-1-1(a)(2) middotPlaintiff attempts to allege that these defendants engage in purposeful and

regular commercial activities in Marshall County based upon their advertising efforts and

operation in close proxiniitymiddot to Marshall County However defendant Airsquid has never

engaged inadvertising effortsmiddot in Marshall County and in fact Airsquid peIforms no advertising

~n West Virginia Airsquids only cortnection to West Virginia occurred on April-20 2013 in

Berkeley County FUrther defendant Tough Mudderdid not conduct business within Marshall

County and if it had any middotpresence in Marshall County at all it was due to Tough Muddersmiddot

social media or ~ebsite presence Pursuant to West Virginia case law neither defendant

Airsquid nor defendant TOQgh Mudder conducted a substantial portion of their business within

Marshall County Once again while plaintiff has alleged that the defendants have a presence in

Marshall County it is no different a presence then they have elsewhere It is not a substantial

portio~ of their effort or enterprises and plaintiff has not alleged that it is4

The Estate and the Circuit Court of Marshall County have relied extensively on the

advertising and marketing the defendants - but mostly General Mills - has conducted in

4 Of the 16 million Tough Mudder participants Tough Mudder reports that in 2013 64 persons registered listing Marshall County addresses [App 000231]

15

Marshall County although the advertising was unrelated to the cause of death in this instance 5

This Court has clarified the phrase where the subject cause of action arose to mean the exact

location where the duty owed is alleged to have been violated or breached State ex rei

Thornhill v King 233 W Va 564 759 SE2d 795 (2014) While Thornhill arises in the context

of employment contract formation and breach it is analogous to the instant situation where the

Estate has asked this Court to find venue on impermissible grounds - venue in a place where

none of the defendants reside and where the cause of action did not arise Airsquid argued

Thprnhill in the Circuit Court believing it to provide meaningful guidancemiddotin this matter where

plaintiff relies upon advertising campaignS by General Mills andor promotional materials by

Tough Mtidderas somehow vepliedeterminative The Court in Thornhill found that the locations

ofoffer aeceptance and performance do not set venue conversely the location of violation or

breach is where the subject cause of action arose and venue is correct at that location 233 w

Va 57159sE2d at 802

The Thdrnhill plaintiff George Roberts worked for Thornhill Group an automobile -

dealership in Logan County West Virginia Thornhill 233 W Va at 566 759 SE2d at 797 In

spring 2011 Mr Roberts learned of Thornhills plans to replace him with a younger employee

and in February 2013 Mr Roberts filed suit in Kanawha County alleging inter aa breach of

cbntract Id Thornhill by counsel filed a motion to dismiss stating that venue was improper in

Kanawha County plaintiff opposed the motion citing West Virginia case law that identified a

three-prong test for selecting venue - where the duty was created where duty was breached

5 General Mills markets consumer goods including Wheaties internationally including in Marshall CountymiddotIIowever Avishek Senguptas death was not as a result ofWheaties purchase or consumption and Avishek Senguptas death did not resultmiddot from General Mills contact with Marshall County~ which is not a substantial portion ofits corporate footprint in any event

16middot

where the damage was felt Id 6 The trial court denied Thornhills motion to dismiss for improper

venue finding that venue was proper in Kanawha County because the employment contract was

formed when N[r Roberts accepted the contract (by telephone) while standing in his home in

Kanawha County and because the damage arising from the breach would be felt most severely in

Kanawha County because Mr Roberts lived there Id at 567 759 SE2d at 798

This Court reversed the ruling of the trial courtmiddot finding that venue in West Virginia is

detenllined by theresidence of any of the defendants or where the cause of action arose even in

the instance of a corporate defen4ant and an individual plaintiff Id at 801 While the factual

predicates in Thornhill (employment contract) may be factually inapposite to this wrongful death

claim nonetheless Thornhill remainsmiddot amongmiddot the more recent statements of venue As such

Airsquid pr~gtvided it to the Circuit Court and moved for a finding that venue is most appropriate

where the ca~~ of action aro~e that is where the alleged breach or violation of duty occurredmiddot

that is inthis in~tanc~ Berkeley County7 See also SyI McGuire v Fitzsimmons 197 W Va

6 See Thornhill at 233 W Va at 566~ 759middot SE2d at 797 quoting SyI pt 3 Wetzel County Savings amp Loan v Stern Bros Inc 156 W Va 693 195 SE2d 732 (1973)

[t]he venue of a cause of action in a case involving breach ofcontract in West Virginia arises within the county (1) in which the contract was made that is where the duty came into existence or (2) in which the breach or violation of the duty occurs or (3) in whichmiddotthe manifestation of the breach-substantial damage occurs

7 Thornhill also stands for the proposition that several locations can be seen as venue determinative such as the location where the parties entered the contract where the parties performed the contract where the breach occurred andwhere the damage from the breach is felt

most severely 759 SE2d at 799 Indeedthe trial courtin Thornhill considered several other factors

Three additional factors that the trial court cited in support of its ruling included (1) the fact of which it took judicial notice that the Thornhill Group advertises extensively in Kanawha County via both print and broadcast media (2) the Thornhill Groupsmiddot operation of a dealership in Kailawha County and (3) the likely recusal of the two sitting

17

132 135475 SE2d 132 135 (1996) finding in the context oflegal malpractice that venue can

be proper in more than one location - either where the instant (alleged) negligent act occurred or

the defendant resides

To the extent that the Venue Order found venue in Marshall County when the alleged

breach occurred in Berkeley County and when none of the defendants reside in Marshall County

it is clearly erroneous and cannot stand

4 If a civil action is tiled in a county in which no venUe detenninative connections exist is venue appropriate there

Pursuan~ to West Virginia law venue cannot starid in a county where none of the

defendants reside and where the cause of action did not arise This Court has considered a variety

of venue scenarios where the plaintiff can point to some connectio~ to the county in which

plaintiff filed however this Court has stated repeatedly that it must be where a deferidant resides

or where the cause of action arose In State ex rei Galloway v McGrcw 227W Va 435 711

SE2d 257 (2011) this Court considered a suit brought by Fredelclng La~ Offices (located in

Wyoming County) against Galloway Group (located ill Kanawha County) arising out of an

alleged breach of contract to share legal fees 227 W Va at 436 711 SE2d at 258 Defendant

Galloway challenged venue in Wyoming County by filing a motion to dismiss but the Circuit

Court of Wyoming County denied the motion onthe basisthat a portion of the fees at issue arose

circuit court judges in Logan County b~ed on their prior actions in suits involving the petitioners

Id at 798 n1 0 Of note the Thornhill plaintiff like the plaintiff here asked the Circuit Court of Kanawha County and then the West Virginia Supreme Court ofAppeals to find venue based upon television advertisements televised within the venue plaintiff had selected sua sponte The Supreme Court re-directed course on that determination relying upon the venue statute in clarifying that the appropriate test is wherein any of the defendants may reside or the cause of action arose

18

from WMW A litigation Jd The Circuit Court reasoned in that instance because some members

of the UMWA reside in Wyoming County then venue is appropriate there Jd This Court

granted the petition for writ dismissing the underlying action 227 W Va at 438 711 SE2d at

260 In granting the petition for writ in Galloway this Court reiterated its position in Wetzel

County Savings amp Loan Co v Stern Bros Inc 156 W Va 693 195 SE2d 732 (1973) that a

breach of contract cause of action arises either where the contract was formed wherethe breach

occurred or where the damages are made manifest Sy1 pt 1 Galloway Finding that the

contract between Galloway and Fredeking was not formed or brea~hed~ Wyoming Countyand

fmding that the damages were not manifest there this Court granted the writ and dismissed

Fredekings claim 227 W Va at 438 711 SE2d at 260

In like manner the instant Agreement was not f6~ed in Jv(ars~ll County the alleged

breach did not occur in Marshall County audno damages whatsoever are manifest in Marshall

COllIlty To the extent that th~ Venue Order finds venue iti Marshall ~o~ty it is clearly

erroneous ill a matter of law and cannot stand

5 If pursuant to West Virgini~ Rules of Civjl ProcedureRule 12(b)(3) and W Va Code sect 56-1-1(a) a civil action is improperly filed in the wrong county~ and thereforeis pending before the wrong Circuit Court should that civil action be dismissed pr in the alternative transferred to the appropriate venue Within West Virginia

Pursuant to West Virginia law the appropriate method for challenging venue is through a

motion to dismiss See Hansbarger v Cook 177 W Va 152 157351 SE2d 65 71 (1986)

stating that [t]he proper method of raising the question of improper venue is by amotion to

dismiss under R~Ie 12(b)s Upon receipt of the Estates Complaint Airsquid filed a mOtion to

8 Pursuant to the venue statute West Virginia Code Section 56-1-1 (b)~ a motion to transfer venue is appropriate

19

dismiss or in the alternative to transfer venue to the Circuit Court of Berkeley County WV

where the cause of action arose and where the only domestic defendant - Peacemaker - resides

This Court has repeated granted petitions for writ and granted motions to dismiss where the

underlying suit was filed other than where any of the defendants reside andor where the cause of

action arose See eg State ex rei Thornhill v King 233 W Va at 567 759 SE2d at 798

State ex rei GalowG) v McGraw 227 W Va 435 711 SE2d 257 (2011) Siate ex rei Stewart

v Alsop 207 W Va 430 533 SE2d 362 (2000) State ex rei Hutman v Stephens 206 W Va

501526 SE2d23 (1999)

For all of the reasons demonstrated herein the Venue Order that places venue in Marshall

County operates outside the mandates of West Virginia law asset forth in West Virginia Code

Section 56-1-1 and as further delineated by this Court Because the Venue Order is clearly

erroneous as a matter of law the Venue Order cannot stand and dismissal is the appropriate

remedy

6 Should this Honorable Court interven~here where the lower tribunal has misstated and therefore misconstrued the tenns ofthe forum selection clause included in the Assumption ofRisk Waiver ofLiability and Indemnity Agreement (Agr~ement) entered between the parties

At the direction of the Circuit Court of Marshall County and as prescribed in the Trial

Court RUles the Estate initially circulated a proposed order andmiddot defense counsel provided

comments and objections (to both fonn and content) Airsquid received the official submission to

the Court of the current bifurcated (venue arbitration) orders on November 6 2014 and filed

[w]henever a civil action or proceeding is brought in the county where the cause of action arose under the provisions of subsection (a) of this section if no defendant resides in the county adefendant to the action or proceeding may move the court before which the action is pending for a change ofvenue to a county where one or more ofthe defendants resides

20

formal objections below Nonetheless plaintiffs Venue Order was entered virtually verbatim

See State ex rei Cooper v Caperton 196 W Va 208 214 470 SE2d 162 168 (1996)

In its September 15 ruling on venue the Court had adopt[ ed] the reasoning and analysis

set forth by the Plaintiff and further stated that its Venue ruling and analysis begins and

necessarily ends with the Venue and Jurisdiction clause of the putative agreement [App

000979] The Court ended its letter by instructing the Estate to prepare a draft order reflective of

the Courts foregoing determinations [App000980]

Beyond the Courts September 15 correspondence West Virginia law provides that the

test of an appropriate order is whethe~ the order as a~opted by the circuit court accurately

reflect[s] the existing law and the trial record Cooper 196 W Va at 214470 SR2d at 168

Defendant Airsquid has objected to plaintiffs proposed Venue Order to the extent it fails

to be reflective of the Courts determinations and to the extent it deviates from the law

andlor the record b~fore this CoUrt Specifically Airsquid objects as follows [App 001000]

Becausemiddotthe Circuit Courts ruling begins and necessarily ends with the Venue and

Jurisdiction clause of the putative agreement it is imperative that the Venue Order address

fully fairly and most importarttly accurately the Venue and Jurisdiction clause The Estate

repeatedly misstated the ve~le ciause at issue referencing its terms as any appropriate state or

federal court ru opposed to the actual language the appropriate state or federal court See

Venue Order at ~~ 22 27 28 29 (emphasis added) Defendant Airsquid maintained below that

the use of the definite article the is an express enlistment of the venue statute -- where the

cause of action arose W Va Code 56-1-1

The Estates use of any is particularly egregious in its analysismiddot of place for legal

action and type of court eligible to consider the claim Venue Order at ~ 27 The Circuit

21

Courts directive that the ruling and analysis begin and end with the Venue and Jurisdiction

clause The draft order expressly and dangerously deviates from that language stating that the

type of court eligible to hear lawsuits is also defined to be any appropriate state or federal

court ld Plaintiff has added sua sponte the place and type dichotomy which exceeds the

Circuit Courts directive misstating the clause in a significant manner broadening the

appropriate~ into any appropriate court

Virtually without exception the Venue Order as prepared by the Estate and entered by

the Circuitmiddot Court includes the phrase any appropriate state or federal trial court which is

c1~arly inaccurate and fails to adhere to the Circuit Courts ruling Venue Order at ~~ 222728

29 (emphasis added) Of particularmiddot note the Estate extended the misstatement even further

clainllng tha( defendants are consenting to venue in any West Virginia coUrt having subject

matter jurisdiction oyer this case Thus Defendants are bound by the terms of their own contract

tohonor Mrs middotSenguptas s~lection ofMarshall Couno Venue Order at ~ 22 (emphasis added)

The Cjrcuit Court of Marshall County entered the draft order in virtually its verbatim fOrIn

thereby memorializing incorrectly the Agreement and misstating the facts and law of the case

For that reason the Vel)ue Order is clearly erroneous and the petition for writ should be granted

7 Should this Honorable Court intervene here where the lower tribunal has mis~onstrued West Virginia law where this Court otherwise would not have the opportunity to clarify this point of law before unnecessary discovery and where to proceed will lead to delay and unnecessary cost for which an appeal cannot compensate

It is axiomatic in West Virginia law that the issue of venue may properly be addressed

through awrit of prohibition given this Courts preference for resolving the issue in an original

action and given the inadequacYof relief upon appeal See State ex reI Thornhill 233 W Va at

567 759 SE2d at 798 relying upon State ex reo Riffle v Ranson 195 W Va 121464 SE2d

22

763 (1995) Additionally this Court has found relief appropriate where the party seeking the writ

has no other adequate means such as direct appeal to obtain the desired relief where the

petitioner will be damaged or prejudiced in a way that is not correctable on appeal where the

lower tribunals order is clearly erroneous as a matter of law where the lower tribunals order is

an oft repeated error or manifests persistent disregard for either procedural or substantive law

and where the lower tribunals order ~ses new and important problems or issues of law of first

impression State ex rei Hoover v Berger 199 W Va 12 483 SE2d 12 (1996) Among these

factors Airsquidand the other defendants have already expended considered time and resourcesmiddotmiddot

to the venue issue before beginning what- by all appearances will be a lengthy protracted and

contentious litigation Tomiddot maintain the action in Marshall County - the incorrect venue - only to

face the prospect of litigating again in the correct venue seems particulariy onerous and wasteful

ofjudici~ and other resources As set forth below and here the Venue Order faIls outside the

middot mandates of ~est Yirginias velue law and while a review of the case law demonstrates that

this is a recurring issue this Court faces it is nonetheless an important issue to litigants and to

middot tribunals For middotthese reasons Airsquid petitions this Honorable Court for relief at this time

further seeking ~ fmding that the Venue Order is clearly erroneous and cannot standmiddot

Conclusion

For all of the reasons set forth herein defendant Airsquid Ventures Inc dba

Amphibious Medics and Travis Pittman petition this Honorable Court for relief from Order

middot Denying Defendants Motions to Dismiss Based on Venue and Forum Non Conveniens

eritered by the Circuit Court of Marshall County on January 9~ 2015 These petitioners seeks the

relief this Court deems just

23

AIRSQUID VENTURES INC dba AMPHIBIOUS MEDICS and TRAVIS PITTMAN

By counsel

David L Shuman Esq VSB 3389) DavidmiddotL Shuman Jr Esquire (WVSB 12104) Roberta F Green Esquire (WVSB 6598)middot SHUMAN McCUSKEY amp SLICER PLLC bull

1411 Virginia Street EastSuite 200 (25301) P O Box 3953 Charleston WV 2 5339-3953 Phone 304-345-1400 Facsimile 304-343-1286 dshmnanshumanlawcom dshumanjrshumanlawcom rgreenshmnarrlawcom

Robert C ~organ Esquire Admitted Pro Hac Vice MORGAN CARLO middotDOWNS amp EVERTON PA Executive Plaza III Suite 400 11350 McComllck Road Hunt Valley MD 21031 Phone 1-443-589-3333

Co-counselforAirsquid Ventures Inc dba Amphibious Medics

Karen Kahle STEPTOE amp JOHNSON PLLC

middotmiddot1233Main Street Suite 3000 PO Box 751 Wheeling WVmiddot 26003-0751 (304) 233-0000 KarenKahleSmiddotteptoe-Johnsoncom

Charles F Johns (5629) DenielleStritch (11847) STEPTOE amp JOHNSON PLLC 400 White Oaks Boulevard

Bridgeport WV26330 CharlesJohnsSteptoe-Johnsoncom

Counselfor Travis Pittman

24

VERIFICATION

ST A TE OF WEST VIRGINIA

COUNTY OF KANAWHA TO-WIT

I Roberta F Green counsel for Airsquid Ventures Inc dba Amphibious Medics being

first dUly sworn state and say that the facts and documents contained in the foregoing Petition

for Writ of Prohibition

information and belief

Taken subscribed and sworn to before me this the 6th day ofFebruary 2015

My commission expires

[NOTARY SEAL]

amp OFPICIALSeAL NOTARY PUBLIC

STATE OF WEST VIRGINIA Deborah G Naylor

bull 111A Pinewood Rd ~ ~ Elkview WV 25071

- YCommission Expires May 202018

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA No _____

ST ATE OF WEST VIRGINIA EX REL AIRSQUID VENTURES INC (DBA AMPHIBIOUS MEDICS)

Defendant Below Petitioner

v

HONORABLE DA VIDWHUMMEL JR Judge of the Circuit Court of Marshall County West Virginia

Respondent

CERTIFICATE OF SERVICE

I DavidL Shuman David L Shuman JrlRoberta F Green do hereby certify that I served this 6th day ofFebruary 2015 the foregoing Petition for Writ of Prohibition upon the below listed counsel of record by depositing true copies thereof in the United States mail postage prepaid in an envelope addressed to them which address is their last known address

Robert P Fitzsimrilons Esquire (WV~B 1212) Clayton J Fitzsimmons Esquire (WVSB 10823) Fitzsimmons Law Finn PLLC 1609 Warwood Avenue Wheeling WV 26003 -and

Robert J Gilbert Esquire Edward J Denn Esquire Gilbert amp Renton LLC 344 North Main Street ALndover1iA 01810

Counsel for Plaintiff

Alonzo D Washington Esquire (WVSB 8019) Christopher M Jones Esquire (WVSB 11689) Flaherty Sensabaugh amp Bonasso PLLC 48 Donley Street Suite 501 Morgantown WV 2 6501 - and-

Michele L Dearing Esquire Jackson amp Campbell PC 1120 20th Street NW South Tower Washington DC 20036-3437

Counsel for Defendants Tough Mudder LLC Peacemaker National Training Center LLC General Mills Inc and General Mills Sales Inc

Charles F Johns Esquire ltWYSB 5629) Steptoe amp Johnson PLLC 400 White Oaks Boulevard Bridgeport WV 26330

-and-Karen E Kahle Esquire (5582)

Steptoe amp Johnson PLLC 1233 Main Street Sui 2JJItiIIIoo

3 Counselor De

Wheeling WV 2

David L -Shuman ( SB 3389) David L Shuman Jr (WVSB 12104) Roberta F Green (WVSB 6598) Shuman McCuskey amp Slicer PLLC 1400 Virginia Street East Suite 200 (25301) P O Box 3953 Charleston WV 25339-3953 Phone 304-345-1400 Facsimile 304-343-1826

Karen Kahle STEPTOE amp JOHNSON PLLC 1233 Main Street Suite 3000 PO Box 751 Wheeling WV 26003-0751 (304) 233-0000 KarenKahleSteptoe-lohnsoncom

Charles F Johns (5629) Denielle Stritch (11847) STEPTOE amp JOHNSON PLLC 400 White Oaks Boulevard Bridgeport WV 26330 (304) 933-8000middot CharlesJohnsSteptoe-Johnsoncom Counselfor Travis Pittman

ii

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Wheeling WV 2
























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[App 001006]






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Wheeling WV 2

























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[App 001006]






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10























11


SE2d 906 908 (1990) [App 000143]





















12





















13

3




















14
























15













Va 57159sE2d at 802









16middot



















17




















18





















19








501526 SE2d23 (1999)





remedy







20
























21






















22

















Conclusion






23


By counsel










24

VERIFICATION









[NOTARY SEAL]








v


Respondent












3 Counselor De

Wheeling WV 2






[App 001006]






SU~YOFARGUMENT










4





[App000139]










does not lie





ARGUMENT




5
























6




venue determinative




Marshall County













7























8






















9







starid











10























11


SE2d 906 908 (1990) [App 000143]





















12





















13

3




















14
























15













Va 57159sE2d at 802









16middot



















17




















18





















19








501526 SE2d23 (1999)





remedy







20
























21






















22

















Conclusion






23


By counsel










24

VERIFICATION









[NOTARY SEAL]








v


Respondent












3 Counselor De

Wheeling WV 2






[App000139]










does not lie





ARGUMENT




5
























6




venue determinative




Marshall County













7























8






















9







starid











10























11


SE2d 906 908 (1990) [App 000143]





















12





















13

3




















14
























15













Va 57159sE2d at 802









16middot



















17




















18





















19








501526 SE2d23 (1999)





remedy







20
























21






















22

















Conclusion






23


By counsel










24

VERIFICATION









[NOTARY SEAL]








v


Respondent












3 Counselor De

Wheeling WV 2

























6




venue determinative




Marshall County













7























8






















9







starid











10























11


SE2d 906 908 (1990) [App 000143]





















12





















13

3




















14
























15













Va 57159sE2d at 802









16middot



















17




















18





















19








501526 SE2d23 (1999)





remedy







20
























21






















22

















Conclusion






23


By counsel










24

VERIFICATION









[NOTARY SEAL]








v


Respondent












3 Counselor De

Wheeling WV 2





venue determinative




Marshall County













7























8






















9







starid











10























11


SE2d 906 908 (1990) [App 000143]





















12





















13

3




















14
























15













Va 57159sE2d at 802









16middot



















17




















18





















19








501526 SE2d23 (1999)





remedy







20
























21






















22

















Conclusion






23


By counsel










24

VERIFICATION









[NOTARY SEAL]








v


Respondent












3 Counselor De

Wheeling WV 2
























8






















9







starid











10























11


SE2d 906 908 (1990) [App 000143]





















12





















13

3




















14
























15













Va 57159sE2d at 802









16middot



















17




















18





















19








501526 SE2d23 (1999)





remedy







20
























21






















22

















Conclusion






23


By counsel










24

VERIFICATION









[NOTARY SEAL]








v


Respondent












3 Counselor De

Wheeling WV 2























9







starid











10























11


SE2d 906 908 (1990) [App 000143]





















12





















13

3




















14
























15













Va 57159sE2d at 802









16middot



















17




















18





















19








501526 SE2d23 (1999)





remedy







20
























21






















22

















Conclusion






23


By counsel










24

VERIFICATION









[NOTARY SEAL]








v


Respondent












3 Counselor De

Wheeling WV 2








starid











10























11


SE2d 906 908 (1990) [App 000143]





















12





















13

3




















14
























15













Va 57159sE2d at 802









16middot



















17




















18





















19








501526 SE2d23 (1999)





remedy







20
























21






















22

















Conclusion






23


By counsel










24

VERIFICATION









[NOTARY SEAL]








v


Respondent












3 Counselor De

Wheeling WV 2
























11


SE2d 906 908 (1990) [App 000143]





















12





















13

3




















14
























15













Va 57159sE2d at 802









16middot



















17




















18





















19








501526 SE2d23 (1999)





remedy







20
























21






















22

















Conclusion






23


By counsel










24

VERIFICATION









[NOTARY SEAL]








v


Respondent












3 Counselor De

Wheeling WV 2



SE2d 906 908 (1990) [App 000143]





















12





















13

3




















14
























15













Va 57159sE2d at 802









16middot



















17




















18





















19








501526 SE2d23 (1999)





remedy







20
























21






















22

















Conclusion






23


By counsel










24

VERIFICATION









[NOTARY SEAL]








v


Respondent












3 Counselor De

Wheeling WV 2






















13

3




















14
























15













Va 57159sE2d at 802









16middot



















17




















18





















19








501526 SE2d23 (1999)





remedy







20
























21






















22

















Conclusion






23


By counsel










24

VERIFICATION









[NOTARY SEAL]








v


Respondent












3 Counselor De

Wheeling WV 2


3




















14
























15













Va 57159sE2d at 802









16middot



















17




















18





















19








501526 SE2d23 (1999)





remedy







20
























21






















22

















Conclusion






23


By counsel










24

VERIFICATION









[NOTARY SEAL]








v


Respondent












3 Counselor De

Wheeling WV 2

























15













Va 57159sE2d at 802









16middot



















17




















18





















19








501526 SE2d23 (1999)





remedy







20
























21






















22

















Conclusion






23


By counsel










24

VERIFICATION









[NOTARY SEAL]








v


Respondent












3 Counselor De

Wheeling WV 2














Va 57159sE2d at 802









16middot



















17




















18





















19








501526 SE2d23 (1999)





remedy







20
























21






















22

















Conclusion






23


By counsel










24

VERIFICATION









[NOTARY SEAL]








v


Respondent












3 Counselor De

Wheeling WV 2




















17




















18





















19








501526 SE2d23 (1999)





remedy







20
























21






















22

















Conclusion






23


By counsel










24

VERIFICATION









[NOTARY SEAL]








v


Respondent












3 Counselor De

Wheeling WV 2





















18





















19








501526 SE2d23 (1999)





remedy







20
























21






















22

















Conclusion






23


By counsel










24

VERIFICATION









[NOTARY SEAL]








v


Respondent












3 Counselor De

Wheeling WV 2






















19








501526 SE2d23 (1999)





remedy







20
























21






















22

















Conclusion






23


By counsel










24

VERIFICATION









[NOTARY SEAL]








v


Respondent












3 Counselor De

Wheeling WV 2









501526 SE2d23 (1999)





remedy







20
























21






















22

















Conclusion






23


By counsel










24

VERIFICATION









[NOTARY SEAL]








v


Respondent












3 Counselor De

Wheeling WV 2

























21






















22

















Conclusion






23


By counsel










24

VERIFICATION









[NOTARY SEAL]








v


Respondent












3 Counselor De

Wheeling WV 2























22

















Conclusion






23


By counsel










24

VERIFICATION









[NOTARY SEAL]








v


Respondent












3 Counselor De

Wheeling WV 2


















Conclusion






23


By counsel










24

VERIFICATION









[NOTARY SEAL]








v


Respondent












3 Counselor De

Wheeling WV 2



By counsel










24

VERIFICATION









[NOTARY SEAL]








v


Respondent












3 Counselor De

Wheeling WV 2


VERIFICATION









[NOTARY SEAL]








v


Respondent












3 Counselor De

Wheeling WV 2





v


Respondent












3 Counselor De

Wheeling WV 2








3 Counselor De

Wheeling WV 2


in the supreme court of appeals of west ......on january 9, 2015, the circuit court of marshall...

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